The
Court denies the Plaintiff's motion for new trial because
it concludes that its instruction on the meaning of
possession under the drinking in public statute was correct
and, if not, the Plaintiff's failure to propose any jury
instructions on the definition of possession, and his failure
to object to the given instruction either at the charge
conference or at trial, doom his demand for a new trial.

I.
BACKGROUND

A.
Procedural History

On July
22, 2015, Arthur J. Long filed a lawsuit pursuant to 42
U.S.C. § 1983 in this Court against Brent Abbott, an
officer with the Portland Police Department, and others,
alleging that Officer Abbott had violated his constitutional
rights by arresting him without probable cause and by using
excessive force against him in effecting the
arrest.[1]Compl. (ECF No. 1). The case was
tried before a jury on May 30-31, 2017, and on May 31, 2017,
the jury issued a verdict in favor of Officer Abbott.
Jury Verdict (ECF No. 97). On May 31, 2017, the
Court duly reduced the verdict to judgment. J. (ECF
No. 98).

In
response to a complaint from a local businessperson, Officer
Brent Abbott was dispatched by the Portland Police Department
to 24 Preble Street in Portland, Maine, at around 11:39 p.m.
on August 9, 2014. The police dispatcher told Officer Abbott
that there were four or five males drinking beer just outside
24 Preble Street. When Officer Abbott arrived shortly after
dispatch, he encountered two males on the steps of 24 Preble
Street, and he noticed beers all around the stoop. Officer
Abbott observed that the cans of beer were within easy reach,
perhaps two inches, away from Mr. Long. At least one of the
cans of beer near Mr. Long was sweating, which suggested to
Officer Abbott that the beer inside the can was still cold
since it was a warm night. Officer Abbott did not see either
man actually drinking beer.

Officer
Abbott concluded that there was probable cause to believe
that Mr. Long had been drinking in public, and the officer
demanded Mr. Long identify himself by giving the officer his
name and date of birth. Mr. Long refused to identify himself.
This refusal led to Mr. Long's arrest. The jury concluded
that Mr. Long had not proven by a preponderance of the
evidence that Officer Long lacked probable cause to arrest
him for failing or refusing to identify himself in violation
of Mr. Long's federal constitutional rights. Verdict
Form at 1 (ECF No. 97).

C.
The Legal Issue

These
facts presented a layered legal issue. In order for Officer
Abbott to properly arrest Mr. Long for failing to provide
identification, Officer Abbott had to have probable cause to
believe that Mr. Long had committed or was committing an
underlying crime. The underlying crime that Officer Abbott
believed Mr. Abbott had committed was drinking in public, a
violation of 17 M.R.S. section 2003-A(2):[2]

A person is guilty of public drinking if the person drinks
liquor in any public place within 200 feet of a notice posted
conspicuously in the public place by the owner or authorized
person that forbids drinking in the public place or after
being forbidden to do so personally by a law enforcement
officer, unless the person has been given permission to do so
by the owner or authorized person.

Setting
aside other issues, the drinking in public statute requires
that the person be actually drinking liquor. Id.
(“if the person drinks liquor”). However, the
statute goes on to state:

The possession of an open container of liquor in a public
place is prima facie evidence of a violation of this section.

17 M.R.S. § 2003-A(3).

On this
issue, echoing the statute and interpreting Maine caselaw,
the Court instructed the jury:

Maine law also provides that the possession of an open
container of liquor in a public place is prima facie evidence
of a violation of law. If you find that Mr. Long possessed an
open container of liquor, then the law permits the inference
from this fact that Mr. Long was in violation of this law.
The law also provides that possession of an object means that
the object was subject to a person's dominion and
control. To find that Mr. Long possessed an open container of
liquor and that the rule of prima facie evidence applies, Mr.
Long had to have the object within his dominion and control.

Although
he did not object to this instruction at trial, Mr. Long is
now objecting to the instruction on the ground that the Court
erred when it instructed the jury on constructive possession.
In his motion for new trial, Mr. Long contends that the Court
should have instructed the jury that this statute requires
actual, not constructive possession. Pl.'s Mot.
at 1-3.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;II.
THE ...

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